WATER POLLUTION:

Appeals court's logging ruling provokes political backlash

A federal appeals court ruling that would require Clean Water Act permitting for stormwater runoff on logging roads has sparked a political backlash, leading to congressional action and possible Supreme Court intervention.

The San Francisco-based 9th U.S. Circuit Court of Appeals ruling applies to the nine Western states within the court's jurisdiction, including the Pacific Northwest, which has a significant logging industry.

A three-judge panel ruled last summer in Northwest Environmental Defense Center v. Brown that logging road operators, including timber companies and local government entities, should be required to apply to U.S. EPA for permits under the National Pollutant Discharge Elimination System (NPDES) (Greenwire, Aug. 18, 2010).

Critics say the ruling ruined an existing process that had worked for 35 years, in which states had the job of regulating runoff and EPA did not require permits.

In May, the 9th Circuit declined to rehear the case, a decision that prompted the latest flurry of activity (Greenwire, May 17).

The political response -- on both sides of the aisle -- has been overwhelmingly negative. Unlike other battles over EPA authority that have divided Democrats and Republicans in Congress, in this case at least some lawmakers from both parties seem to agree the agency had been doing the right thing before the courts got involved.

Lawmakers in both chambers have introduced legislation that would reverse the ruling. Republicans have also inserted similar language into the House 2012 spending bill for Interior and EPA that is currently being debated (E&E Daily, July 27).

Separately, Oregon Gov. John Kitzhaber (D) announced in a statement Monday that he will seek Supreme Court review of the decision.

"We knew this was going to happen," Peter Goldman, one of the lawyers at the Washington Forest Law Center who won the case on behalf of the Northwest Environmental Defense Center, said of the reaction. "We are disappointed but not surprised."

The law center initially filed suit over two logging roads in Oregon's Tillamook State Forest.

Ditches, culverts and channels there collect and discharge runoff that eventually drains into nearby rivers. The sediment "adversely affects fish ... by smothering eggs, reducing oxygen levels, interfering with feeding, and burying insects that provide food," Judge William Fletcher wrote in the 9th Circuit opinion.

The statement issued by Kitzhaber's office Monday said the governor believes the ruling is "legally flawed" and could "create increased economic, social and environmental instability" in Oregon's forests.

Kitzhaber said he agreed with some of the concerns raised by environmental groups but stressed that "we are at a point in the history of our management of forests where we need to develop stability, consensus and collaboration, not management by lawsuit."

The Supreme Court takes up only a small number of petitions, although a large proportion of the cases it does hear tend to be from the 9th Circuit, seen as the most liberal-leaning of the federal appeals courts. The Supreme Court will not be considering any new petitions for review until it returns from its summer recess in October.

On Capitol Hill, Sen. Mike Crapo (R-Idaho) introduced a bill, S. 1369, earlier this month that would reverse the ruling. A companion measure in the House, H.R. 2541, was introduced by Rep. Jaime Herrera Beutler (R-Wash.). Both have attracted a bipartisan list of co-sponsors.

Crapo maintains there are multiple reasons for intervening.

"This decision will have substantial impacts on our forests and those who rely on them," the senator said in a statement. "It will increase litigation, reduce sustainable and environmentally-friendly timber harvesting, further burden our forests with excess fuels and raise additional barriers to the vital mission of improving forest health."

One of the Democrats who support the legislative effort is Sen. Ron Wyden of Oregon, who said that decades of litigation over forestry "have created a train wreck for our state and region."

The 9th Circuit decision "would shut down forestry on private, state and tribal lands by subjecting it to the same endless cycle of litigation," he added.

The legislation, which has the support of timber industry groups, would reinstate the previous regime for handling timber road runoff. EPA had defined runoff as a "nonpoint source" and excluded it from permitting. States would retain the authority to regulate on the issue.

Reporter Paul Quinlan contributed.

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